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In the Matter of Ronald Brownell and Irene Brownell

May 11, 2012

IN THE MATTER OF RONALD BROWNELL AND IRENE BROWNELL


The opinion of the court was delivered by: Dalianis, C.J.

Plymouth Family Division

Argued: April 11, 2012

The petitioner, Ronald Brownell, appeals the final decree entered by the Plymouth Family Division (Rappa, J.) in his divorce from the respondent, Irene Brownell. The petitioner argues that the trial court erred when it: (1) considered his federal veterans' disability benefits as income for alimony purposes; (2) treated any potential post-divorce distributions from his mother's trust as marital property subject to distribution; (3) ordered him to pay the respondent $47,000 from his trust distributions, even though he had dissipated most of it before the divorce; and (4) found him in indirect civil contempt for failing to pay temporary alimony to the respondent and for violating the trial court's anti-hypothecation order. We affirm.

The following facts derive from the record. The parties were married for thirteen years. They separated in May 2010, and their final decree of divorce was entered in April 2011.

The petitioner is totally and permanently disabled. He receives $962 in monthly social security benefits and approximately $2,578 in monthly federal veterans' disability benefits. He receives federal veterans' disability benefits because he has post-traumatic stress disorder from serving in Vietnam. The respondent also suffers from post-traumatic stress disorder, as well as other ailments. She receives approximately $200 in monthly food stamps and has no savings or other assets.

The only marital asset is the petitioner's inheritance from a trust created by his mother. The petitioner is one of five beneficiaries of the trust; his sister is the trustee of the trust. The petitioner's mother died in March 2010. Between then and January 2011, the petitioner received $79,000 from the trust. Despite the trial court's November 2010 anti-hypothecation order, the petitioner spent all $79,000 by the time of the parties' final hearing in February 2011.

The petitioner used more than $30,000 to buy illegal narcotics. With the remainder, he bought himself a truck and a trailer, gave his children $9,000, and spent $6,000 on his daughter's wedding. The trustee estimated that the petitioner will receive an additional $15,000 from the trust.

Although the trial court's temporary order required the petitioner to pay the respondent $1,250 in monthly alimony, he did not do so. As a result, the respondent was unable to pay the mortgage on the marital home. By the time of the final hearing, the home had gone into foreclosure, and the respondent was homeless and living in a shelter.

The trial court specifically found that the petitioner had "no credibility." The trial court found that he lied at an August 2010 hearing when he testified that he had received, by that time, only $25,000 from the trust, when, in fact, he had received $41,000. The trial court found that he lied again a month later when he answered interrogatories indicating that, as of September 2010, he had only received $31,500 from the trust, when, in fact, he had received $51,000. The trial court found that the petitioner again lied in his December 2010 financial affidavit, which indicated that he had no cash, even though, in that month alone, he received $10,500 in cash from the trust, which he then spent on illegal drugs.

The parties' final divorce decree ordered the petitioner to pay the respondent one-half of his trust distributions, which the court calculated to be $47,000 ($79,000 received before divorce $15,000 to be distributed after divorce = $94,000/2 = $47,000). The trial court also found the petitioner to be in indirect civil contempt for violating its temporary decree by not paying alimony as ordered and by hypothecating marital property. To purge himself of the contempt, the court ordered the petitioner to pay the alimony arrearage and to pay the respondent's attorney's fees associated with filing and prosecuting her contempt motions. The trial court authorized the respondent to perfect a lien against the petitioner's trailer and truck to secure the debt.

"We afford trial courts broad discretion in determining matters of property distribution, alimony and child support in fashioning a final divorce decree. We will not overturn the trial court's decision absent an unsustainable exercise of discretion." In the Matter of Crowe & Crowe, 148 N.H. 218, 221 (2002) (citation omitted). "If the court's findings can reasonably be made on the evidence presented, they will stand." In the Matter of Letendre & Letendre, 149 N.H. 31, 36 (2002). We address each of the petitioner's arguments in turn.

I. Veterans' Disability Benefits

The petitioner first argues that federal law precludes the trial court from counting his monthly veterans' disability benefits as income for alimony purposes. RSA 458:19 (Supp. 2011) authorizes a trial court to award alimony if: (1) the party in need "lacks sufficient income, property, or both, including property apportioned in accordance with RSA 458:16-a, to provide for such party's reasonable needs, taking into account the style of living to which the parties have become accustomed during the marriage"; (2) the party from whom alimony is sought "is able to meet reasonable needs while meeting those of the party seeking alimony, taking into account the style of living to which the parties have become accustomed during the marriage"; and (3) the party in need "is unable to be self-supporting through appropriate employment at a standard of living that meets reasonable needs."

In determining the amount of alimony, a trial court must consider: the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded under RSA 458:16-a, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the ...


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